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The Canadian Bar Review. La Revue Du Barreau Canadien. Volume 97. 2019. Number 2. Numéro 2

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The Canadian Bar Review. La Revue Du Barreau Canadien. Volume 97. 2019. Number 2. Numéro 2 JUDGING SEXUAL ASSAULT: THE SHIFTING LANDSCAPE OF JUDICIAL EDUCATION IN CANADA Rosemary Cairns-Way and Donna Martinson* The authors, a law professor and a former judge, examine recent events that raise critical questions about judicial education on sexual assault. These include the Inquiry into the conduct of Justice Robin Camp, the consequent unanimous passing by Parliament of Bill C-337, the Judicial Accountability through Sexual Assault Law Training Act, and the institutional response of the Canadian Judicial Council (CJC) to the public outcry and the political response. The article considers the tension between the legitimate call for judicial accountability and the equally legitimate desire to protect judicial independence at a time of increasing public and political awareness of entrenched female inequality and its relationship to male sexual violence. They argue that the judicial education provisions of Bill C-337 reflect this tension and, as a result, are likely to be ineffective if proclaimed in force. While they identify many positive aspects to the CJC response to the Bill, the authors conclude that the CJC’s continued insistence that judicial education be controlled, supervised, and implemented by judges is inadequate. They suggest that a respectful, continuous, and dynamic collaboration among judges, legal and other academics, and community members with relevant experience and expertise will contribute to public understanding of the judicial role at the same time as it increases the likelihood that judicial education will enhance women’s equal treatment in the nation’s courtrooms. Les auteures, une professeure de droit et une ancienne juge, examinent les événements récents qui soulèvent des questions cruciales sur la formation des juges en matière d’agression sexuelle. Ces questions comprennent un examen de la conduite du juge Robin Camp, l’adoption à l’unanimité du projet de loi C-337 par le Parlement, qui s’en est suivie, soit la Loi sur la responsabilité judiciaire par la formation en matière de droit relatif * Rosemary Cairns-Way is a full professor in the Faculty of Law, Common Law at the University of Ottawa. She teaches criminal and constitutional law. Her primary research interests center on equality, and in particular, on the infusion of equality values into judicial education, law school pedagogy, professional responsibility and the substantive criminal law. Donna Martinson is a retired judge of the British Columbia Supreme Court now doing volunteer work on equality issues as an Adjunct Professor at Simon Fraser University and a Research Associate with the Peter A. Allard School of Law at the University of British Columbia (UBC). Before becoming a judge in 1991, she practiced criminal law both as Crown counsel and defence counsel and taught criminal law at UBC law school. She dealt with criminal law cases, including sexual assault cases, while a judge of the both the BC Provincial Court and the Supreme Court. 368 LA REVUE DU BARREAU CANADIEN [Vol. 97 aux agressions sexuelles, ainsi que la réaction du Conseil canadien de la magistrature (CCM) au tollé général et à la réponse politique. L’article examine la tension qui existe entre les revendications légitimes en matière de responsabilité de la magistrature et le souhait également légitime de protéger l’indépendance judiciaire à une époque où on assiste à une prise de conscience publique et politique grandissante sur la question de l’inégalité persistante des femmeset son rapport avec la violence sexuelle des hommes. Les auteures soutiennent que les dispositions sur la formation des juges dans le projet de loi C-337 reflètent cette tension et, par conséquent, risquent d’être inefficaces si elles entrent en vigueur. Bien que les auteures dégagent de nombreux aspects positifs de la réponse du CCM au projet de loi, elles concluent que l’insistance continue du CCM pour que la formation des juges soit contrôlée, supervisée et mise en œuvre par ces derniers est une mesure inadéquate. Elles suggèrent que la mise en place d’une collaboration respectueuse, continue et dynamique entre les juges, les universitaires se spécialisant en droit et dans d’autres disciplines et les membres de la communauté possédant une expérience et une expertise pertinentes aidera le public à comprendre le rôle des tribunaux, tout en augmentant la probabilité que la formation des juges ait pour effet d’améliorer le traitement réservé aux femmes dans les tribunaux à l’échelle du pays. Contents 1. Introduction ............................................................ 369 2. Social Context Education: The Evolution of the Canadian Model ......................................................... 376 3. Judging Sexual Assault: Déjà Vu All Over Again ........................ 380 4. The Judicial Accountability through Sexual Assault Law Training Act: Politicizing Judicial Education ............................ 385 5. The Judiciary Responds: Protecting Judicial Independence ............ 391 6. Enriching the Conception, Planning and Delivery of Sexual Assault Judicial Education ....................................... 396 7. Conclusion .............................................................. 400 2019] Judging Sexual Assault: The Shifting Landscape of Judicial … 369 Ultimately, we want Canadians to have faith in their justice system. The judiciary, I believe, has not stepped up to ensure that all of its judges are trained and do not unintentionally or intentionally re-victimize sexual assault complainants or, frankly, any party involved in these types of proceedings. This bill [Judicial Accountability through Sexual Assault Training Law] would take steps to build a more accountable and transparent judiciary. Rona Ambrose, MP Testimony before the Standing Committee on the Status of Women, April 4, 2017 1. Introduction On July 5, 2018 the Canadian Judicial Council (CJC) launched a new public website offering an unprecedented glimpse into the current state of judicial education in Canada. In his Introduction, Chief Justice Wagner, Chairperson of Council, states: Canadians want to be reassured that their judges know the law and can do their job with empathy and fairness. … The Canadian Judicial Council wants to ensure Canadians have up-to-date knowledge about all aspects of judicial education. Public confidence in the judiciary demands no less.1 The website offers readers a concise justification for judicial professional development, answers frequently asked questions, and briefly describes the education programs offered during the last fiscal year. While the website recognizes the importance of education about developments in the law, it emphasizes the critical importance of education on social context. Social context education “provides judges with the necessary skills to ensure that myths and stereotypes do not influence judicial decision- making” and ensures that judges are “aware of the challenges faced by vulnerable groups in society.”2 The website launch is the latest, but not the only, recent CJC initiative on judicial education. In April of 2017, the CJC adopted a motion making the new judges’ program mandatory, reversing 1 The Right Honourable Richard Wagner, “Message from the Chair, Judicial Education” online: Canadian Judicial Council <cjc-ccm.ca/en/what-we-do/professional- development> [“Message from the Chair”]. The CJC relaunched its website on August 26, 2019. The content of the website remains the same in all relevant details. There is no longer a separate website for judicial education. Rather information about professional development (including education programs) is incorporated into the new site. 2 Ibid. 370 THE CANADIAN BAR REVIEW [Vol. 97 a long-standing policy that mandatory education was incompatible with judicial independence.3 While the launch of the website was unprecedented, it was not surprising. Seventeen months earlier, on February 23, 2017, MP Rona Ambrose introduced Bill C-337, The Judicial Accountability through Sexual Assault Law Training Act.4 According to Ms. Ambrose, the Bill addresses “the need to build more confidence in our judicial system when it comes to the handling of cases involving sexual assault and sexual violence.”5 More particularly, the Bill was, in part, a political response to the ongoing CJC inquiry into Justice Robin Camp’s conduct while presiding over a sexual assault trial in the summer of 2014.6 By 2017, Justice Camp was known in the media as the “knees-together judge” as a result of his conduct of the trial.7 The Judicial Accountability Act contains a number of proposed changes related to the judicial treatment of sexual assault.8 Our focus will be on the provisions which deal with the substance 3 “Judicial Education Policies and Guidelines for Canadian Superior Courts” (2017), online (pdf): Canadian Judicial Council <https://bit.ly/2kEGy0l> [“JE Policies and Guidelines for Canadian Superior Courts”]. An updated version was released in April 2018: CJC Policies and Guidelines, 2018 Update, infra note 81. 4 Bill C-337, An Act to amend the Judges Act and the Criminal Code (sexual assault), 1st Sess, 42nd Parl, 2017 [Judicial Accountability Act]. Comprehensive and up-to- date information about the Bill is available at <openparliament.ca/bills/42-1/C-337/>. 5 “Bill C-337, An Act to amend the Judges Act and the Criminal Code (sexual assault), 1st reading, House of Commons Debates, 42-1, No 146 (23 February 2017) at 1010 (Hon Rona Ambrose). 6 “In the Matter of an Inquiry Pursuant to s. 63(1) of the Judges Act Regarding the Honourable
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